I thank Joe Lieberman for highlighting a point I made in an earlier post: new media monopolies raise some of the same free speech concerns as monopoly and oligopoly in traditional media.

Senator Lieberman recently demanded that Google's YouTube take down hundreds of videos produced by al-Qaeda and other groups that the State Department has designated as Foreign Terrorist Organizations. YouTube refused to comply with his broad request, but did review the videos to determine whether they violated its own guidelines, which prohibit hate speech and graphic or gratuitous violence. It then took down 80 videos, but left others up. Lieberman responded that YouTube's actions were insufficient, that "[v]ideos produced by al-Qaeda and al-Qaeda affiliates showing attacks on American troops remain on YouTube's website and ... should be taken down immediately."

The New York Times castigated Lieberman as a "would-be censor." Lieberman responds today in a letter to the editor: "The bipartisan staff of the Senate committee I head, which oversees homeland security matters, has documented that Islamist terror networks rely extensively on the Internet in their continuing war against the American people.... The peril here is not to legitimate dissent but to our fundamental right of self-defense. For those of us in government, protecting Americans is the highest responsibility. Asking private parties operating public communications systems to assist that effort is common sense."

I must confess that my initial, gut reaction was one of support for Lieberman. I am bewildered by those -- including many on this blog -- who seem to think that the worst thing about our post 9-11 world is not the very real threat of a repeat of 9-11 or worse, but the incursion on civil liberties, SOME of which is an inevitable part of homeland security. (Yes, yes, I realize the critical questions are how much incursion is truly necessary, at what price, and who has authority to decide.) And Lieberman is absolutely right that terrorists use the Internet to recruit, incite violence, raise funds, and give instructions. It makes the argument for civil liberty and free speech far too easy to pretend that's not so. The Times makes that very move in its criticism of Lieberman. Its editorial begins: "The Internet is simply a means of communication, like the telephone, but that has not prevented attempts to demonize it — the latest being the ludicrous claim that the Internet promotes terrorism. " Yet today's Times features a front page story about a self-styled "female holy warrior for Al Qaeda," who makes highly effective use of the Internet to "bull[y] Muslim men to go and fight."

The reason Lieberman is wrong, of course, is not that the terrorist organization videos are innocuous, but that, as history has repeatedly taught us, we can't generally trust government to distinguish between truly dangerous speech and speech that government functionaries or ideologues think is dangerous. McCarthyism, the Pentagon Papers, the Bush Administration provide ready examples. And as Seth Kreimer has cogently underscored, government too often bullies mass media and other speech intermediaries to act as its censor.

Media are inevitably somewhat vulnerable to this kind of government bullying, and new media like Google, which now lobbies government on issues ranging from network neutrality to the wireless spectrum, is no exception. As a result, while no guarantee, the available of commercially viable alternative sources of information and opinion presents a vital bulwark against this kind of indirect censorship. If YouTube caves and too readily removes videos that Senator Lieberman finds dangerous or repugnant, our First Amendment interest in robust debate and expressive diversity is best served by the availability of such videos on other readily accessible, easily locatable, and commercially viable Web sites.

I emphasize "readily accessible, easily locatable, and commercially viable." I don't think it's enough for dissenting speech to be relegated to the Internet equivalent of street corner pamphleteers, seen and heard by very, very few. Rather we are best served by having several competing YouTubes. If one too readily caves, perhaps the others will resist and castigate the caver for doing so.

i think you have a skewed perspective of the opinions of those on this blog who are bemoaning the erosion of our civil liberties.

i believe i speak for nearly everyone here when i say i am worried about another terrorist attack in the us. as for homeland security, i believe we need to monitor our shipping ports, monitor phone calls (with a warrant) and in general take a very law enforcement oriented approach to preventing an attack.

the war in iraq does not make us safer. warrantless wiretapping does not make us safer. the suspension of habeus corpus for american citizens does not make us safer. torture does not make us safer. some of these are lessons learned the hard way by our forefathers.

exactly which civil liberties would you have us sacrifice for safety?

of what value are our first amendment rights if Joe Lieberman can force us to take down "offensive" content.

these rights were too hard-fought to be surrendered meekly for any reason.

from "our" perspective you are too prepared to surrender liberty for security and on the flimsiest of grounds.

"(Yes, yes, I realize the critical questions are how much incursion is truly necessary, at what price, and who has authority to decide.)"

If you are interested in prevented further terrorist attacks, these are not the critical questions. The critical questions are those involving what to do about reducing the amount of violence in the world, especially the world over which we have control, and how to address the legitimate grievances of the communities that might support the groups and individuals who would commit terrorist acts.

The question that the author brings up are simply a distraction.

I agree with the point of the previous commenter (one of the points, that is), namely that a balance between security and civil liberties is simply not an issue.

Many people here and elsewhere have assumed it is, and gone on to debate without ever providing reasonable justification of the assumption.

I find it rather creepy (legal term) that you initially supported Lieberman's position in attempting to bully and censor .... and I must admit it is not too comforting that you only changed your mind because you agree we can't trust government to distinguish between dangerous postings and non dangerous. Yes 9-11 (which Happened 6 1/2 years ago) was a horrible criminal event but it does not mean we curtail our civil liberties.There are alot of people suggesting outrageous views out on the internet... and worse views on our mainstream television... and with the wrong audience any one of us...even you...could be considered the bad guy...

We are not talking about American citizens who may or may not agree with current Administration foreign policy.

We are not talking about asking a foreign citizen for their passport.

What we are talking about is simply whether foreign al Qeada have a First Amendment right to communicate propaganda to our citizenry.

The very concept is insane.

A variety of American traitors who communicated Axis propaganda asserted First Amendment defenses to the treason charges against them and the courts simply laughed, holding that there is most certainly not a First Amendment right for Americans to communicate enemy propaganda.

Do you then think that the Axis themselves had such a right then or that al Qaeda does now?

Lieberman: "For those of us in government, protecting Americans is the highest responsibility. Asking private parties operating public communications systems to assist that effort is common sense."

This is precisely the subtle and wrong rhetorical move that has been used by all the war maximalists in the current government.

Their oaths are to uphold the Constitution, not to protect the populace. Protection of the populace is what the police and military powers of the State are for. Upholding the Constitution is what the legislators and officials of the executive are for.

Trampling on the Constitution in order to "protect the people" is all very well and good, if we want to have a gleaming and safe police state with all dissent suppressed, all citizenry under surveillance, and all governmental misconduct unremediable.

Neil, don't be seduced by Lieberman's "reasonableness". He is engaged in subtle framing that skews his listeners to approval of what intrinsically are anti-constitutional assertions.

If so, name any court in the world which recognizes that a wartime combatant has a free speech right to communicate propaganda to the population of another combatant under the Universal Declaration of Human Rights.

Next, identify the US Code provision which enforces such a "right" in the United States.

A variety of American traitors who communicated Axis propaganda asserted First Amendment defenses to the treason charges against them and the courts simply laughed, holding that there is most certainly not a First Amendment right for Americans to communicate enemy propaganda.

Could you include a link or cite for the non-lawyers among us? Thanks.

Do you then think that the Axis themselves had such a right then or that al Qaeda does now?

Yes. I guess I missed the "freedom of speech except in wartime" clause of the First Amendment.

This raises my own inner censor.I wish to make a gentle plea to everyone posting here in this oasis of rationality to voluntary abstain from using that phrase so redolent of Europe and former political pathologies there: "homeland security"

Just excise "homeland" and replace it with "American" or "United States". The meaning will be preserved and the spiritually sickening Orwellian undertones will be gone.

I dunno. Probably less moronic than various utterances of yours on recent threads.

We are not talking about American citizens who may or may not agree with current Administration foreign policy.

Who's posting the YouTube stuff?

But I was responding to your claim that "enemy speech should be censored during war time" when there's such a loose 'definition' (as in the quotes I provided) as to who the 'enemy' is.

We are not talking about asking a foreign citizen for their passport.

Didn't check the link, didja? You need to get out more. You might develop a rudimentary sense of humour.

What we are talking about is simply whether foreign al Qeada have a First Amendment right to communicate propaganda to our citizenry.

No, they don't. Make them stop. Go do it, "Bart". You want to go harangue Osama for his impertinence, I'm right behind you ... well, let's make that: "I'll cheer you on from over here". You could maybe even threaten him with a lawsuit....

The very concept is insane.

A variety of American traitors who communicated Axis propaganda asserted First Amendment defenses to the treason charges against them and the courts simply laughed, holding that there is most certainly not a First Amendment right for Americans to communicate enemy propaganda.

They were convicted of adhering to the enemy, giving them aid and comfort. It was actions, not speech, that did it. If anti-gummint speech was enough, we might have locked up the obstructionist "America First" Republicans. Perhaps you'd like to say who's doing such now?

Do you then think that the Axis themselves had such a right then or that al Qaeda does now?

There is no need to get into the thicket of whether the Government would be justified in suspending First Amendment rights based on the exigencies of war.

Quite right. Because the answer is an emphatic "NO!", no matter how much you'd like to.

"[E]xigencies of war" are not an 'out' from the dictates of the Constitution. In the two exceptions to this, the Constitution is explicit in what can be done and under what circumstances, and there is no 'out' because the Constitution provides for these. That doesn't apply to the First Amendment.

BD: A variety of American traitors who communicated Axis propaganda asserted First Amendment defenses to the treason charges against them and the courts simply laughed, holding that there is most certainly not a First Amendment right for Americans to communicate enemy propaganda.

Could you include a link or cite for the non-lawyers among us? Thanks.

how do you know that it is war time combatants who are posting these videos? you do not know. Freedom of speech for foreigners is our default position.

1) Enemy propaganda is not protected speech regardless of speaker. If the poster of the al Qaeda propaganda is an American, under current law he or she is very likely a traitor.

2) Foreign al Qaeda have no First Amendment rights.

3) Apparently you have conceded the point that the Universal Declaration of Human Rights does not say that a wartime combatant has a free speech right to communicate propaganda to the population of another combatant.

KOTKAI: The Taliban are preparing to launch a propaganda offensive with greater (global) outreach by arming some of its members with requisite skills to upload videos on websites such as YouTube.

“The real war is the media war,” Tehreek-e-Taliban Pakistan chief Baitullah Mehsud told Daily Times. “It is our desire to learn also how one should fight the media war.”...

“The Taliban have not been very advanced as far as the media war is concerned. But we are making efforts to catch up with the latest methods, and we will soon be available on YouTube,” a non-Pashtun and non-combatant member of the Taliban’s media cell told Daily Times, his face covered up to evade the identifying gaze of invited lenses...

The Taliban media cell has already been releasing video CDs showing horrific images, apparently with different aims. One such video, screened during an army media briefing on May 18, shows a boy as young as 10 firing shots at the head of a blindfolded man and beheading another.

“Such images leave a deep impact on viewers. It is part of Taliban psychological warfare to break down opponents psychologically,” a retired army expert on psy-ops warfare told Daily Times in Peshawar.

i've got to wonder how effective such a campaign by the taliban would be ?? the final effect of showing videos of the corruption of children into child jahidis couldn't be a positive imo .. but would bring international condemnation ...

no censorship .. and no amnesty for lawbreakers .. it's the american way ...

As might have been anticipated, the voice from the wilderness, has come to the thread with more spurious argument.

Bart wrote:This is not a matter of trusting the government to distinguish between good and bad al Qaeda speech. ALL enemy speech should be censored during war time.

And he wrote:“A variety of American traitors who communicated Axis propaganda asserted First Amendment defenses to the treason charges against them and the courts simply laughed, holding that there is most certainly not a First Amendment right for Americans to communicate enemy propaganda.”

As usual there is a flaw in Bart’s reasoning: The USA is not at war. The trials to which Bart adverts relate to assisting the enemy in a war declared by Congress.

In legal terms, the so-called “War on Terror” is not a war at all because the President is not empowered to declare war. The categorisation is mere Presidential hyperbole – like ”the war on drugs”.

Yes, the USA is engaged in armed hostilities, but neither qualifies as a “war”. Wars are against states, as I have explained to Bart on previous threads. In Afghanistan, there is a sovereign government which the USA and other countries are assisting. In legal terms, the USA is not even presently at war in Iraq. Foreign armed forces are present there for the moment pursuant to a UN resolution to assist the sovereign government of that country, a government with which the USA maintains diplomatic relations and indeed its largest embassy anywhere in the world (although it may be surplus to requirements quite soon). That resolution expires next year.

There may be very good reasons why YouTube, a US corporation and a resident, might be required rather than asked to take down postings depending on the content: an arguable case might be made to take down some postings under USC Title 18 S.2385, others under other provisions of law. But I am sure a service provider like YouTube will take advice from competent lawyers (rather than relying on Bart’s assertions) and will stay on the right side of the law.

Equally, as an application of the distinction between liberty and licence, YouTube has the ability to take down any post it deems unduly offensive – which it has exercised.

More generally, it is important that citizens should know the truth about the true state of affairs in Afghanistan and Iraq, about those who oppose US policy – and why. Censorship is inimical to informed judgment which is why persons of Bart’s persuasion are so keen on it.

There is a case for limiting the ability of terrorist organisations to use the internet for their purposes. The UK has some recent legislation to that end - very arguably too broadly drafted - because there are some governments in the world which merit overthrow.

I am bewildered by those -- including many on this blog -- who seem to think that the worst thing about our post 9-11 world is not the very real threat of a repeat of 9-11 or worse, but the incursion on civil liberties, SOME of which is an inevitable part of homeland security.

You mean the torture, abuse of executive power, surrender of Congress of its duties as a check on the executive, and so forth? Are complaints about such things what you are "bewildered" about?

Should we instead focus on the "very real threat" said threat not really avoided by doing such things, or even "some" of the things the original post probably considers inevitable?

The problem is not just gov't as censor. It is the fool's errand of trying to block Youtube like videos of this sort when copyrighted material continues to leak thru, even with the amount of money and effort made to stop it.

Or, the complicates in line drawing even for private regulation of speech. Surely, some material that will not be barred can in some fashion benefit terrorists.

After all, they benefit from news clips of our actions and dicussions of the Koran etc.

More generally, it is important that citizens should know the truth about the true state of affairs in Afghanistan and Iraq, about those who oppose US policy – and why. Censorship is inimical to informed judgment which is why persons of Bart’s persuasion are so keen on it.

Are you seriously arguing that:

1) al Qaeda & Taliban propaganda is a legitimate vehicle for our citizenry to "know the truth about the true state of affairs in Afghanistan and Iraq?"

2) the al Qaeda & Taliban are simply "those who oppose US policy?"

There is a case for limiting the ability of terrorist organisations to use the internet for their purposes. The UK has some recent legislation to that end - very arguably too broadly drafted - because there are some governments in the world which merit overthrow.

Are you actually arguing that there is a case for al Qaeda and the Taliban to use the internet to communicate propaganda "because there are some governments in the world which merit overthrow?"

Are you thinking perhaps there is a case for al Qaeda and the Taliban overthowing our government?

I am doing the best I can to hold my temper, but this nonsense is going way beyond the pale.

FWIW, all the cases cited by Bart an all such prosecutions following WWII were of US citizens in Germany or Japan making radio broadcasts under the direction and supervision of the German and Japanese governments.

Bart,

Allow me to join Garth Sullivan in asking whether you think the owners of You-Tube are guilty of treason for allowing Al-Qaeda to post their videos? Or, if not, what are you saying? Certainly You-Tube's actions are not comparable to making broadcasts under the direction of the German or Japanese governments. Allow me to offer what I think is a more appropriate analogy.

As everyone knows, the Germans photographed and filmed many of their own atrocities. They were apparently so warped as to believe these were noble actions and preserve these images, presumably as something positive. Suppose some American newspaper had published the photographs or a newsreel (or television station, to the extent television was in use) had broadcast the films. This would clearly have been publishing material prepared by the enemy, presumably as propaganda to advance their cause.

Do you think the US government would have prosecuted these purveyors for publishing enemy propaganda? More likely the response would have been to applaud them for showing just what sort of monsters we were up against. Much of what you condemn as publishing enemy propaganda amounts to revealing enemy atrocities we would never otherwise have known about. Why would you want such things covered up?

I hate to bring this up, but in your otherwise excellent posts you mention the US is not in a state of war.

Further you state wars are against state actors.

Technically correct on both counts.

But if you have followed the debate here in the US, the Administration has explicitly denied, through its AG, that there is a declared war in the sense of Article I war powers clause. The 2001 AUMF granted the Executive plenary powers to engage both state and non-state actors, so we find ourselves once again in a state of warfare but not of war, and this time with a super-enabled Executive.

Why does the administration take so much care to emphasize its grant under the first AUMF? Precisely because they are claiming they have greater powers than a mere Congressional declaration of war would otherwise give them.

So the argument is not really about whether a state of War trumps constitutional guarantees. It is more properly whether the unbridled grant of power for the Executive to pursue a permanent state of warfare against unnamed and nebulous foes, trumps the Constitution and any Congressional check.

Luckily, the court in Rasul and Hamdan, seem to take a little alarm at the administration's vaunting claims.

Seriously! If you'd bothered to read the cases you'd have noticed that none support your claims. In each case (and there are dozens of others), the defendants directly aided and gave adherence to foreign nations that the U.S. had declared war against and were thus prosecuted for treason.

Those particulars are not present in the YouTube question. Neither does anyone allege that YouTube adheres to terrorist goals or assists such groups in preparing their messages. If the government believes it has evidence to the contrary there are plenty of political hacks serving as U.S. Attorneys who can be drafted to file the indictments (if they dare).

Sorry but in a democratic society it is precisely at moments of the gravest public concern that the public MOST needs the information presented by media to inform and guide THEIR decisionmaking. We do not (yet) live in a dictatorial state where all-knowing wisemen make these decisions for us.

Further, censorship of U.S. public forums merely undermines the voice and reach of U.S. media and drives speech to foreign media, bolstering their voice and reach, and increasing the likelihood that U.S. citizens are 'clueless' of contradictory foreign views (which is already at epidemic levels).

What is most ironic is that there has been no mention here of the illegal propaganda efforts of our own government via the Pentagon to distort and introduce falsehoods into media-presented public information. Perhaps Mr. Lieberman would devote some attention to that criminal activity? That IS indictable.

If you broadcast the expression of an American enemy in wartime with the intention to deliberately aid the military operations of that enemy directed against the United States, you can be tried for treason. As of the 1940's, there was no First Amendment defense available to that charge, though presumably nowadays, the prosecution would have to establish that Brandenburg v. Ohio (decided in the late 1960's) was satisfied.

However, that has nothing to do with the press broadcasting statements by American enemies. First, there is no intention to aid the enemy (despite the idiotic statements of right wing talk radio hosts, American liberals and members of the media don't wake up every morning asking "what can we do to help Al Qaeda?"). This specific intention is required by the constitutional definition of treason, which applies only to ADHERING to enemies, giving them aid and comfort. "Adherence" requires deliberate acts to aid an enemy, not simply actions taken for other purposes that might incidentally benefit an enemy.

Second, the actions would have to be directed against the United States. Thus, there are many things that one could deliberately broadcast with the intention of adhering to an enemy that would nonetheless not be treason. For instance, anti-Israel propaganda would not qualify. It would have to be something that was directed against the United States.

Third, the act of treason would need to be established by 2 live witnesses, as provided by the Constitution.

Fourth, under modern free speech law (which is much more protective than it was in the 1940's), the prosecution would have to meet the Brandenburg test, i.e., that the speech caused immediate harm to the United States and was specifically intended to cause immediate harm.

Obviously, youtube broadcasting some Al Qaeda videos has nothing to do with treason.

I am doing the best I can to hold my temper, but this nonsense is going way beyond the pale. Think about what you are saying.

My dear Bart,

There are many differences between us, one of which is that I usually put my brain into ‘drive’ before touching the keyboard. You should try it some time.

If you had troubled to pass by the “No Torture, No Exceptions” thread, where you asserted the success of US policy in Iraq and against Al-Quaida, you will see that I set out there (i) why your assertions of success were unwarranted, (ii) the consequential low standing of the USA in the Muslim world – backed by a survey just released and (iii) the need to combat the theology of and the recruitment of adherents to Al-Quaida type movements.

Here again to keep the context are extracts from my post :-

“Sayyed Qutb, the apologist for terror whose writing inspired Bin Laden was executed in 1966 but his thought and teaching lives on, continues to be read and emulated nearly 40 years on. The struggle against terrorism - which I very much support - has of necessity to tackle the ideology. Just as the burning of heretics did not stop the spread of the ideas of the Reformation, neither will military or police repression wipe out this ideology which puts us all at risk.

There are still many smallish groups of Muslims around the world who have read the writings of Qutb and writings of others derived from his thought. They gather in small groups, often around a preacher or an activist who expounds salafist or intégriste theology to anyone who will listen. Vulnerable young people are persuaded to seek out opportunities for "jihad" and they are encouraged travel to places, such as the tribal areas of Pakistan, where they can be further indoctrinated. This happens with young Muslims in the UK as recent events have shown. …

More importantly, when a skilled propagandist, such as Bin Laden, makes a pronouncement, it will be studied by sympathisers, who may have never have met him or anyone connected with him, but who will seek to emulate him. That is why the so-called "war on terror" cannot be won by the military means advocated by the USA. The capture or killing of a particular leader or "emir" achieves very little because the thoughts and the ideology live on. Indeed the deceased may come to be regarded as a martyr.

This is a secular struggle which has to be won by exhibiting our values, practising what we preach and by development aid for education. If a 10th of the military aid given to Pakistan by successive US Administrations had been diverted instead to the development of a proper public school system and the elimination of the madrassas where the Qutb ideology is expounded by the ignorant to the ignorant, that would have been a major achievement.

The Bush "war on terror” for which Bart advocates is most certainly not a popularity contest. If it were, the USA has lost it. These are the results of a poll in 4 Muslim countries conducted for the World Public Opinion project of the University of Maryland (http://www.worldpublicopinion.org) and discussed on their web site today 28th May 2008:-

“Large majorities across all four countries believe the United States seeks to “weaken and divide the Islamic world.” On average 79 percent say they perceive this as a US goal, ranging from 73 percent in Indonesia and Pakistan to 92 percent in Egypt. Equally large numbers perceive that the United States is trying to maintain “control over the oil resources of the Middle East” (average 79%). Strong majorities (average 64%) even believe it is a US goal to “spread Christianity in the region.”

“While US leaders may frame the conflict as a war on terrorism, people in the Islamic world clearly perceive the US as being at war with Islam,” said Steven Kull, editor of WorldPublicOpinion.org.Consistent with this concern, large majorities in all countries (average 74%) support the goal of getting the United States to “remove its bases and military forces from all Islamic countries,” ranging from 64 percent in Indonesia to 92 percent in Egypt.

Substantial numbers also favor attacks on US troops in Iraq, Afghanistan, and in the Persian Gulf. Across the four countries polled approximately half support such attacks in each location, while three in ten are opposed. But there is substantial variation between countries: Support is strongest in Egypt, where at least eight in ten approve of attacking US troops in the region. A majority of Moroccans also support targeting US forces, whether stationed in the Persian Gulf (52%) or fighting in Iraq (68%). Pakistanis are divided about attacks on the American military — many do not answer or express mixed feelings — while Indonesians oppose them.”

Can anyone think of a better propaganda tool than the message that the USA does not adhere to the values it preaches. That its government employs means such as torture, inhuman and degrading treatment, arbitrary arrest and detention without trial, illegal invasions, bombings of civilian populations. That it regards Muslims as inferior people. That its soldiery uses the Holy Koran for target practice.

Bart, there are justifications for censorship in wartime just as there are for classifying certain official secrets in peacetime, but one has to be careful about limiting free speech. You may recall that at the height of the IRA bombing campaign, Mrs Thatcher enacted legislation seeking to deny the IRA leadership access to the broadcast media by making it an offence to broadcast any words spoken by people like Martin McGuinness (now the Deputy first Minister in the Northern Ireland Government). It was an over-reaction, ineffective (the networks simply employed actors to read the words), and an enormous propaganda victory for the IRA.

I pointed out in my post that there were possible statutory grounds for inhibiting the publication of some posts (not incidentally the false legal basis on which you were arguing) and I accepted that there is a case for more legislation. I wrote:-

"There is a case for limiting the ability of terrorist organisations to use the internet for their purposes. The UK has some recent legislation to that end - very arguably too broadly drafted - because there are some governments in the world which merit overthrow."

You now ask:

“Are you thinking perhaps there is a case for al Qaeda and the Taliban overthowing our government?”.

The answer is that I do not believe there is any case for Al-Quaida or the Taliban to do anything. Nor do I think there is any case for the overthrow of the government and institutions of the USA by anybody. It is a democracy. If the people of the USA are unhappy with their forms of government, they have their remedies.

I suggest there is a case to be made for the impeachment of the President, the Vice President and others in the present Administration because they have sought to circumvent the checks and balances set out in your Constitution. There is also a case for the trial of many officials for war crimes.

A less drastic alternative might be some kind of “truth and reconciliation” commission along the lines of that set up in post-apartheid South Africa where immunity and pardons could be granted after full disclosure.

I would however welcome the overthrow of the undemocratic and corrupt regimes of many countries in the Middle East and elsewhere. If the USA had not insisted on supporting such regimes in what was perceived as the US economic interest (such as the Shah’s Government in Iran, the Saddam Hussein Government in Iraq and the corrupt government of Saudi Arabia, to name but a few – then perhaps we would not today be facing the menace of Al Quaida and the Taliban (both of which organisations initially became powerful as a consequence of decisions taken by the Reagan Administration to arm and use them in the hope of bringing down the Soviet Union).

I quite accept, Bart, that you will not agree with much of what I say. But then I contend that your many posts demonstrate that you are singularly ill-informed as well as forensically challenged.

Others have suggested that you took your bar exams by a deputy. For my part I am driven to wonder whether your manifest problems are not more fundamental. George Bush is said to have had what he though was divine inspiration telling him to invade Iraq. Do you by any chance also hear 'voices' ?

Garth wrote: One good reason for them to allow all videos that otherwise meet their criteria is to show Americans what we're up against and just how badly things have disintegrated.

Bart responded: You have gone from arguing that foreign enemies have First Amendment rights to communicate propaganda to openly cheering for the propaganda to succeed in harming national morale.

This is an interesting exchange. Garth advocates for a freer flow of information as it would promote an intelligent, informed citizenry better able to defend themselves. Bart seems unable to process this position. He doesn't think it plausible that we can learn about our enemies by observing them and their speech. He doesn't appear to trust that our citizens could be anything other than credulous as regards our enemies speech. Simultaneously--provided our gov't is stocked with right-wing ideologues--he expects and insists on a credulous citizenry.

Curiously, he also appears to believe that his view of human nature is more optimistic and reverential than the typical liberal view.

If, as per Cramer vs U.S, "Providing aid and comfort to the enemy is no treason, if there is no adherence", then, would Lieberman "requesting" that these videos be taken down, be considered "Censorship"?

There is no force of law behind this "request". Or is he proposing that there be one?

Mike, FWIW, all the cases cited by Bart an all such prosecutions following WWII were of US citizens in Germany or Japan making radio broadcasts under the direction and supervision of the German and Japanese governments.

Bart,Allow me to join Garth Sullivan in asking whether you think the owners of You-Tube are guilty of treason for allowing Al-Qaeda to post their videos? Or, if not, what are you saying?

My point in bringing up the WWII treason cases was only to provide legal authority for the proposition that the First Amendment does not protect enemy propaganda. Propaganda is no more protected that its cousins slander and libel.

I am not going to get diverted into whether the operators of youtube could be liable for treason for knowingly broadcasting enemy propaganda videos.

Seriously! If you'd bothered to read the cases you'd have noticed that none support your claims. In each case (and there are dozens of others), the defendants directly aided and gave adherence to foreign nations that the U.S. had declared war against and were thus prosecuted for treason.

You apparently have not bothered to read the First Amendment analysis in these cases.

Gillars v. US, 182 F.2d 962, 971 (DC Cir 1950) expressly distinguishes the First Amendment protection of "free expression of thought and belief as party of the liberty of the individual as a human personality [and unprotected] words which reasonably viewed constitute acts in furtherance of a program of an enemy."

Chandler v. US, 171 F.2d 921, 939 (1st Cir 1948) was much more direct: "Trafficking with the enemy, in whatever form, is wholly outside the shelter of the First Amendment...It is preposterous to talk about freedom of speech in this connection."

Enemy propaganda is no more protected under the 1st Amendment than are kindred lies like slander and libel.

Does the Constitution's War Powers Clause recognize "irregular" undeclared wars against non-state groups? If not, should there be a "laxative" amendment to the Constitution to permit the Executive to do so unilaterally to avoid the results of irregularity?

Garth wrote: One good reason for them to allow all videos that otherwise meet their criteria is to show Americans what we're up against and just how badly things have disintegrated.

Bart responded: You have gone from arguing that foreign enemies have First Amendment rights to communicate propaganda to openly cheering for the propaganda to succeed in harming national morale.

This is an interesting exchange. Garth advocates for a freer flow of information as it would promote an intelligent, informed citizenry better able to defend themselves. Bart seems unable to process this position. He doesn't think it plausible that we can learn about our enemies by observing them and their speech.

Enemy propaganda is not an objective third party observation of enemy acts and speech suitable for educating the citizenry. Rather, propaganda is designed by an enemy to misrepresent reality with the intent to harm the morale of the citizenry and thus harm our war effort.

Between 2004 and 2006, enemy propaganda coming out of Iraq was extremely effective in that regard. Our credulous press accepted without question enemy propaganda interviews, photos and videos showing a stream of carnage to Iraq and our troops without any evidence of harm to the enemy, as well as wild unsubstantiated charges of US war crimes. This enormously slanted news created the false impression in the citizenry (and most posters here) that we were losing the war in Iraq.

The reality not shown in enemy propaganda is that we won every battle against the enemy, our casualty rates were in fact the lowest for a war of this length, the enemy lost several times more troops than the US and did not hold most territory in Iraq.

However, the citizenry never saw this reality in the news, instead thought the war was unwinnable and started telling pollsters that they wanted out - which is the entire purpose of the enemy propaganda.

This is psychological operations 101.

If you think that our citizenry can be trusted to consume a diet of enemy propaganda lies without ill effect, observe the responses to this post. I imagine they will start with an hysterical post by BB insisting against all reality that the enemy has defeated our troops in Iraq. His entire world view is formed by this propaganda.

Propaganda is not part of the marketplace of ideas. Rather, it is meant to obscure and hide facts and ideas.

Thus, it is critical to censor the malicious lies of enemy propaganda during wartime and to give the citizenry the entire story.

Between 2004 and 2006, enemy propaganda coming out of Iraq was extremely effective in that regard. Our credulous press accepted without question enemy propaganda interviews, photos and videos showing a stream of carnage to Iraq and our troops without any evidence of harm to the enemy, as well as wild unsubstantiated charges of US war crimes. This enormously slanted news created the false impression in the citizenry (and most posters here) that we were losing the war in Iraq.

The reality not shown in enemy propaganda is that we won every battle against the enemy, our casualty rates were in fact the lowest for a war of this length, the enemy lost several times more troops than the US and did not hold most territory in Iraq.

Baghdad, this is a really outstanding example of propaganda.

However, the citizenry never saw this reality in the news

Actually, the citizenry did see this reality. Unfortunately, they also saw the reality of no WMD, no Al Qaeda connection, and ongoing daily carnage, with no end in sight. It's that reality which caused people to turn on your idiotic war.

One point that seems to have been overlooked in this discussion is that whatever argument one might make that one-way communication channels like radio ought to be censored in a "time of warfare" (whatever that means) should not apply in force to YouTube. YouTube is an inherently participatory, collaborative medium--anyone who has access to a video on YouTube can post a response, both in video or comment form, and that response will be displayed prominently to any subsequent visitors.

Because of these features, its utility as a propaganda tool is dubious, at best. And, if folks like Bart are so certain that the arguments contained in these "propaganda" videos (not having seen any, I'm not comfortable substituting Senator Lieberman's judgment for my own) are unmeritorious, they should have no trouble undercutting the videos' message through honest debate.

The danger of propaganda is not that it conveys unpleasant or erroneous information. No, the danger is that it conveys that information in such a way that it can't easily be countered. Ironically, the problem that propaganda leads to is a stifling of rational discourse--awfully similar to the problem caused by zealous censorship.

Between 2004 and 2006, enemy propaganda coming out of Iraq was extremely effective in that regard. Our credulous press accepted without question enemy propaganda interviews, photos and videos showing a stream of carnage to Iraq and our troops without any evidence of harm to the enemy, as well as wild unsubstantiated charges of US war crimes. This enormously slanted news created the false impression in the citizenry (and most posters here) that we were losing the war in Iraq.

The reality not shown in enemy propaganda is that we won every battle against the enemy, our casualty rates were in fact the lowest for a war of this length, the enemy lost several times more troops than the US and did not hold most territory in Iraq.

However, the citizenry never saw this reality in the news, instead thought the war was unwinnable and started telling pollsters that they wanted out - which is the entire purpose of the enemy propaganda.

youtube is one of the strongest mediums of communication which I have ever seen. It gives individuals and groups the power of the television medium. youtube clips have become a mainstay of the blogosphere and the alternative media with amazingly powerful results.

For example, it is very possible that youtube vidoes of Rev Wright and of Obama waffling in response may end up causing Obama to lose the general election.

Thus, I do not see enemy propaganda broadcast over youtube being less effective. Quite to the contrary, as shown in the article about the Taliban propaganda campaign, the enemy also realizes what a powerful tool youtube has become.

I rather agree that YouTube is a powerful medium. But my point is that messages transmitted through it can never really be "propaganda" because they are never naked. Every user who interacts with a YouTube video may clothe it with commentary and response. That is the hallmark of a deliberative process, and is antithetical to any propaganda effort.

Imagine that Nazi radio broadcasts had a voice talking over them saying "what was just said is a lie, and here is why." I think we'd both agree that would be ineffective propaganda--so ineffective it scarcely would make sense so to name it.

What is transmitted through YouTube is just information, and not at all dangerous. If you think someone is saying something wrong in some video, pointing out and countering the falsehood will do more for your cause (and more for everybody) than urging its deletion. We have nothing to gain from censoring a deliberative, collaborative medium.

And here is another thought--censorship necessarily fails. What is the point of removing these videos, when they will just resurface? The genie is out of the bottle--the technology is here, the world has changed, and we would do better just to learn to live with it. The only way truly to kill an idea is to rebut it. Hiding won't work anymore.

There was commentary pro and con at youtube on the Wright videos, but that did not mitigate the damage to Mr. Obama.

I also disagree that the genie is out of the bottle concerning the mass distributions of these videos. Without youtube or the equivalent, the enemy will have to post videos on their own jihadi sites with a tiny fraction of the traffic of a youtube.

Alas, I don't think the Wright video fracas really helps your case. Nothing in that video didn't happen, so it's hard to equate it with propaganda. Now, personally, I don't think all that stuff was relevant, but I understand that some people disagree--and I would rather that people have more information rather than less when they vote. The fact that it still caused damage to Obama is neither here nor there--maybe all that means is that the rebuttals, explanations, and responses attached to the video were not strong enough.

Another thing that makes the Wright example inapposite here (and perhaps you can correct me if I'm wrong on this) is that Obama never once called for YouTube to delete that video. On the contrary, he responded to it. To put it in terms that I think might resonate with you, that back and forth was part of the deliberative process that our founders sought so fervently to nurture.

Finally, I don't see what evidence you have that people who want to publish material you find objectionable won't win the struggle (pun intended) against those who wish to suppress it. The history of the internet tells a markedly different tale. And ease of access and dissemination is only increasing. Ironically, the effect of censorship is often to further legitimate the viewpoints you decry--it enables them to say "our truths are so powerful, even the almighty American government prefers to cower than to let its people answer." Is that the message we should be sending?

“Between 2004 and 2006, enemy propaganda coming out of Iraq was extremely effective in that regard. Our credulous press accepted without question enemy propaganda interviews, photos and videos showing a stream of carnage to Iraq and our troops without any evidence of harm to the enemy, as well as wild unsubstantiated charges of US war crimes. This enormously slanted news created the false impression in the citizenry (and most posters here) that we were losing the war in Iraq.

The reality not shown in enemy propaganda is that we won every battle against the enemy, our casualty rates were in fact the lowest for a war of this length, the enemy lost several times more troops than the US and did not hold most territory in Iraq.

However, the citizenry never saw this reality in the news, instead thought the war was unwinnable and started telling pollsters that they wanted out - which is the entire purpose of the enemy propaganda.”

Where, pray, are the sources for this assessment? Contrast this testimony to the Senate Foreign Relations Committee by the Director for Foreign Policy of the Brookings Institution:-

“The failure of American policy in Iraq presents us with an untenable situation. The withdrawal of American troops from Iraq will most likely result in an internal conflagration that could spill over borders, increase the threat of trans-national terrorism, send oil prices soaring further, and add to the number and anguish of 4.5 million Iraqi refugees and displaced people. Yet, keeping American troops in Iraq is an unsustainable stopgap in the absence of major progress toward a political settlement among Iraq’s competing and warring factions.

Realities on the ground in Iraq and in American and international politics will shift rapidly and affect the nature of what can be done in Iraq. American policy has thus far failed in dealing with the complex nature of security, political and economic challenges in Iraq. This failure has created new threats: risks of a wider sectarian conflict in the region between Sunni and Shi’a, an emboldened Iran, a network of Al Qaeda franchises operating throughout the Middle East and North Africa, ungoverned spaces in Iraq that can become bases for exporting trans-national terrorism, and instability and lack of resiliency in international oil markets. These threats are regional and global.”

Who are you calling credulous? The New York Times? The Washington Post? The Times?, The Guardian? Time?, Newsweek?, CNN?, the BBC ?

And for you who is credible ? Come on, WHO ?

And what do you call, “winning a battle”? The indiscriminate use of air power and missiles against civilian population centres ? The estimated 600,000 civilian casualties since the invasion ? The fact that most US troops are engaged in the supply train and in own force protection and that there have never been sufficient troops in country to impose order.

In short, your assessment has all the objectivity of the “History of the Jewish People” written by the late Reichspropagandaminister Doktor Joseph Goebbels PhD.

I am not going to get diverted into whether the operators of youtube could be liable for treason for knowingly broadcasting enemy propaganda videos.

As Bart would put it ::sigh::! You accuse YouTube of broadcasting enemy propaganda, you point out that in WWII broadcasting enemy propaganda was prosecuted as treason, but you refuse to be "diverted" into discussing whether YouTube can therefore be prosecuted for treason. If you are unwilling to be "diverted" into discussing whether your own statements can be taken to their logical conclusion, I see no point in continuing this discussion.

Propaganda does not have to be a flat out lie. Indeed, propaganda is most effective when it is selectively true.

The Wright videos were cherry picked from what Fox claims were hundreds of hours of videos.

Did Wright say those things? Undoubtably.

Were they representative of his sermons in general? Who knows.

Did Obama see the sermons from which the clips were derived? Again who knows.

However, when seen in isolation, these clips make Wright look like a raving racist lunatic and strongly imply that Obama sought out these views and probably shares them.

These video leaks were tremendously effective propaganda.

Another thing that makes the Wright example inapposite here (and perhaps you can correct me if I'm wrong on this) is that Obama never once called for YouTube to delete that video. On the contrary, he responded to it.

The ineffectiveness of Obama's nuanced responses in face of the direct power of the videos themselves made the propaganda even more effective.

Let me use another example.

The Abu Ghraib photos were absolutely true and because of that truth made devastatingly effective propaganda for al Qaeda and its allies.

Was Abu Ghraib representative of the US Army in general. No. However, that is all the Arab street saw concerning US Army detention facilities and it thought that Abu Ghraib was SOP.

The US military and government spent hours with the media attempting to mitigate that disaster to very little effect. The damage was done and it lasted for years.

Propaganda is not something to dismiss casually. It swings the fortunes of war of both the military and political kinds.

I am not going to get diverted into whether the operators of youtube could be liable for treason for knowingly broadcasting enemy propaganda videos.

As Bart would put it ::sigh::! You accuse YouTube of broadcasting enemy propaganda, you point out that in WWII broadcasting enemy propaganda was prosecuted as treason, but you refuse to be "diverted" into discussing whether YouTube can therefore be prosecuted for treason. If you are unwilling to be "diverted" into discussing whether your own statements can be taken to their logical conclusion, I see no point in continuing this discussion.

OK, one response and one only.

While broadcasting enemy propaganda can be an element of treason, treason also requires an intent to provide aid and comfort to the enemy.

This is very difficult to prove when the media outlet claims that it is merely reporting news.

youtube's actions are more problematic, though. In response to the Lieberman complaints, youtube actually reviewed the offending videos and decided to keep broadcasting them because they did not violate youtube's own violence guidelines.

Is intentional and knowing broadcast of enemy propaganda after being put on notice of what the enemy was attempting to accomplish circumstantial evidence of an intent to provide aid and comfort to the enemy or a lower standard of gross negligence which would be insufficient to prove treason?

That would be a jury question.

Morally, there is no doubt that the knowing broadcast of enemy propaganda is reprehensible. The owners of youtube are in fact if not intending to provide aid and comfort to the enemy trying to kill us and our troops. There is simply no justification for youtube's actions.

None of this is disputed. However, it was rarely reported and thus did not exist for the average citizen.

# posted by Bart DePalma : 2:11 PM

Which would give the normal person some indication of how important those "facts" really are. All those things you said are completely true, and yet we have still spent the last 5 years in Iraq pissing away lives and money for nothing. Your tirade was a perfect example of propaganda based on a few selective (and meaningless) facts.

Propaganda does not have to be a flat out lie. Indeed, propaganda is most effective when it is selectively true.

Unfortunately for Mr. Obama, Wrights public statements before and after the leak of the videotapes confirm that he is in fact a raving racist lunatic. Furthermore, Mr. Obama's admissions of having heard Wright's "rough" sermons and actions to conceal Wright confirm that he knew damn well what Wright was saying and kept on coming back for more.

I am not going to get diverted into whether the operators of youtube could be liable

So, in short, you're not going to be diverted into discussing the original post, only the epiphenomenal points that you made early on in the comment thread?

I understand the impulse. I'm doing the same thing right now (and have done on many, many occasions before), but I'd certainly understand if someone tried to draw my tangent back into the frame of the larger discussion.

"...a lower standard of gross negligence which would be insufficient to prove treason?

Oh. Can we convict for treason on a finding of gross negligence? Goodie, goodie! Let the trials begin. Step this way, Dubya. You too, Rummy and Cheney. And you, Rove, Chertoff, Brown, hell even you, Colin....

Of particular interest to this post is a House Resolution #224 that was debated in March 2007.

From the summary;

March 8, 2007

Rep. Bill Shuster (R-PA) has introduced legislation (H.Res.224) dealing with the explosion of jihadi propaganda videos on video sharing sites such as YouTube.

An aide to Congressman Shuster explains:

First and foremost, this bill would express the "sense of Congress" that these sites should take action against jihadi propaganda. It is not binding and does not have the power of law to compel or censor the Internet. We even state in the legislation that Congress should be very hesitant in taking any steps towards the regulation of content on the Internet. Instead, the resolution urges the owners of these websites to realize that they are hosting jihadist propaganda and take action to remove or flag these videos.

The congressman wants to start a debate in Congress on how terrorists use the Internet to spread their ideology, radicalize their audience and recruit members. He hopes this legislation will start that debate.

*This resolution has gone nowhere btw.

Note also the demand for corporate self-censorship with the veiled threat that congress would be reluctant to act, but certainly not precluding it.

It would be interesting to learn how exactly they would define jihadi propaganda. Is it every middle east youtube video that depicts contempt and rage against U.S. Imperial interests? Anything that advocates resistance to an occupying military force?

Will Joe Lieberman get to decide?

I assume any opposition to this resolution renders one a traitor, but, it puts the lie to Bart's specious claim that there is even a question for the jury as to whether YouTube is committing treason.

"You apparently have not bothered to read the First Amendment analysis in these cases."

Excuse me? Who do you think you're fooling?

Again, each case you cited as precedent involves U.S. citizens intimately involved in the preparation and dissemination of enemy propaganda as part of their larger adherence to these nation's war efforts upon the U.S.

NONE of those facts are present in this example. Quoting snippets of dicta does not set summarize the state of the law. And if you advised a client that they did you would likely be sanctioned and/or sued for malpractice.

Dicta is commentary on issues not being decided by the court. The issue of whether the First Amendment protected enemy propaganda was squarely before these courts and I quoted you the relevant holdings.

I would suggest you read Professor Tom Bell's interesting survey of the subject entitled "Treason, Technology, and Freedom of Expression." Professor Bell is concerned that the WWII precedent can not only be used against Americans communicating enemy propaganda under the employ of the enemy, but also Americans who do so on a freelance basis on their own initiative.

Chandler v. US, 171 F.2d 921, 939 (1st Cir 1948) was much more direct: "Trafficking with the enemy, in whatever form, is wholly outside the shelter of the First Amendment...It is preposterous to talk about freedom of speech in this connection."

Doesn't this snippet indicate that the crime (or the essential element thereof) is "trafficking with the enemy", and not any particular words uttered? How is this support for "Bart" DeDicta's contentions? At best, this states that a "freedom of speech" argument that you should be free to say what you want to say doesn't trump other legal restrictions on your actions; i.e., "free speech" is not some protective umbrella of immunity for other proscribed conduct. A conflict might arise should your only means of expression be curtailed by otherwise neutral laws, or if purportedly neutral laws were in fact intended to suppress (or in practise, used to suppress) the expression of a certain viewpoint, but that is not the case here.